Opinion 23-109

Short-Form Opinion

September 7, 2023

Question:    May a part-time judge serve as special counsel for the County Attorney’s office, a position which includes no criminal prosecutorial duties and which would be insulated from all matters involving the district attorney, public defender, conflict defender, and county sheriff in the judge’s own county?  Must the judge seek advance written approval for dual employment pursuant to 22 NYCRR 50.3?    

Discussion:  A part-time attorney judge may engage in the practice of law, subject to certain limitations (see 22 NYCRR 100.6[B][2]-[3]; Judiciary Law § 471) and may accept “public employment in a federal, state or municipal department or agency, provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties” (22 NYCRR 100.6[B][4]).  Thus, we have previously advised that a town justice who is allowed to practice law generally may serve as a county attorney or assistant county attorney, provided the position does not involve prosecutorial or quasi-prosecutorial duties and is fully insulated from all matters involving the district attorney’s office and the sheriff’s office.  Here, where the inquiring part-time judge would perform no prosecutorial or quasi-prosecutorial duties and would be insulated from all such matters, there is no ethical prohibition to serving as special counsel for the County Attorney’s office.

                  The question of written approval is primarily legal and/or administrative in nature, and we must therefore decline to address it.

Enclosed:    Opinion 23-21; 19-160; 18-50; 15-09.